NLRB boosts unions' organizing leverage

In the most significant policy change ever undertaken by the Obama administration to strengthen the power of labor unions, a divided National Labor Relations Board issued a long-awaited final rule speeding up the union election process.

The rule will require businesses to postpone virtually all litigation over eligibility issues until after workers vote on whether to join the union, thereby depriving management of a stall tactic that unions widely claim benefits the employer. In effect, regional NLRB directors will be given broad discretion to rule such litigation unnecessary until an election takes place.

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The regulatory shift represents a clear victory for a labor movement that has often felt taken for granted by the Obama administration. In 2009, labor leaders felt frustrated when the White House declined to press for the Employee Free Choice Act, the so-called card check bill, which would have streamlined union elections in different ways. More recently they’ve opposed the president’s push to fast-track the Trans Pacific Partnership without certain labor protections.

The initial response to the new rule from labor was somewhat muted. In a written statement, AFL-CIO President Richard Trumka said it comprised “modest but important reforms to the representation election process” that will “help reduce delay in the process and make it easier for workers to vote on forming a union in a timely manner.”

But business’s initial reaction was heated. “It’s clear the Administration has an aggressive agenda to uproot longstanding and effective labor policy,” said Jay Timmons, president of the National Association of Manufacturers, in a written statement. “Shortening the time frame before an election robs employees of the ability to gather the facts they need to make an important and informed decision like whether or not to join a union and denies employers adequate time to prepare.”

A legal challenge from business groups is all but certain, and Timmons and National Retail Federation Vice President David French both said their respective groups were weighing that option.

The regulation will eliminate a previously-required 25-day period between the time an election is ordered and the election itself, and it will require employers to furnish union organizers with all available personal email addresses and phone numbers of workers eligible to vote in a union election. An NLRB decision handed down yesterday essentially prohibited employers from denying union organizers access to company email. The rule will also, for the first time, allow for the electronic filing and transmission of union election petitions.

The board adopted the rule by a 3-2 vote, with the Democratic-appointed members all voting in favor and the Republican-appointed members all voting against.

“I am heartened that the board has chosen to enact amendments that will modernize the representation case process,” NLRB Chairman Mark Gaston Pearce said in a statement. “Simplifying and streamlining the process will result in improvements for all parties. With these changes, the board strives to ensure that its representation process remains a model of fairness and efficiency for all.”

The rule was long in the making. The board proposed a similar change in 2011 but the U.S. Court of Appeals for the D.C. Circuit struck it down, ruling that the board lacked a quorum to issue the rule. The five-member NLRB re-proposed the rule in February.

The final rule is virtually guaranteed to prompt an outcry from Republican members of Congress, who have routinely opposed President Barack Obama’s nominations to the board. Sen. Lamar Alexander (R-Tenn.), who will chair the Health, Education, Labor and Pensions Committee in the next Congress, introduced a bill in September to expand the NLRB by one member so that Democrats and Republicans are represented in equal number — a change all but certain to paralyze the board with partisan deadlock.

The NLRB said the rule would bring union elections up to date with modern technology and eliminate “unnecessary litigation and delay.”

“With these amendments, the board will be better able to fulfill its duty to protect employees’ rights by fairly, efficiently and expeditiously resolving questions of representation,” the NLRB said in a statement.

The notice of petition that employers must give workers voting in union elections will be more detailed, and employers will have to post the notice and transmit it by email if they have a work email system.

The rule will also consolidate appeals related to elections into a single process. Parties appealing a pre-election decision by an NLRB regional director will have to wait until after the election takes place before they file a request for review. Post-election reviews of issues by the board will now be discretionary rather than mandatory.

The board received and considered more than 75,000 public comments before Friday’s announcement, according to its spokesperson Anthony Wagner.